Brown v. Barry

• Decision Date: 01 August 1797
• Citation: 3 Dall 365,1 L. Ed. 638,3 U.S. 365
• Parties: <P><B><CENTER> Brown Plaintiff in Error,</CENTER></B></P> <P><B><CENTER>v.</CENTER></B></P> <P><B><CENTER>Barry.</CENTER></B></P>
• Court: U.S. Supreme Court

3 U.S. 365

3 Dall. 365

1 L.Ed. 638

Brown Plaintiff in Error, v. Barry.

August Term 1797

3 U.S. 365

3 Dall. 365

1 L.Ed. 638

Brown Plaintiff in Error,

v.

Barry.

August Term 1797

Error from the Circuit Court for the District of Virginia. An action of debt had been instituted in the Circuit Court by James Barry, a citizen of Maryland, against James Brown, a citizen of Virginia; in which the declaration sets forth, that the Plaintiff by his attorney, 'complains of James Brown, etc. of a plea that he render to him the sum of 770. sterling money of Great Britain, with interest thereon at the rate of 10 per cent per annum, from the 11th of February 1793, which to him he owes, and from him unjustly detains: For that whereas the said Defendant, on the 11th of February 1793, at Virginia aforesaid, according to the custom of merchants, did make his first bill of exchange to the court now here shown, bearing date the said 11th of February 1793, signed with his name, by his proper hand subscribed, and directed to Messrs. Donald & Burton, whereby he requested the said Donald & Burton at 60 days fight of that his first of exchange (his second and third not paid) to pay to the order of Mr. Hector Kennedy, 770. sterling, for value in current money here received, (that is to say at Virginia aforesaid) and to place the same to the account of him the said James Brown.' The declaration then proceeds to set forth, in the usual form, successive indorsements by H. Kennedy to Joseph Hadfield, by Joseph Hadfield to Richard Muilman & Co. and by Richard Muilman & Co. (on the 26th of June 1793) to James Barry, the present Plaintiff; and a protest for non-payment on the 21st of June 1793. After averring that none of the bills of the set had been paid, it concludes, 'whereby and by force of the act of the General Assembly of the Commonwealth of Virginia, in that case made and provided, action accrued to the said Plaintiff, to demand and have of the said Defendant, the aforesaid sum, etc. etc.' To this declaration there was a plea of nil debit, issue was thereupon joined, and, after a trial, the jury found a special verdict in the following words: 'We of the jury find, that the consideration given for the bill of exchange in the declaration mentioned, was the undertaking of Andrew Clow & Co. a party interested in receiving the same, to deliver to James Brown, the drawer thereof, other bills of exchange, in sterling money to the same amount: If the court shall be of opinion that the consideration above mentioned, did not come within the operation of the 4th section of the act of Assembly of the 28. Geo. 2. c. 2. entitled 'an act to amend an act entitled, an act declaring the law concerning executions, and for the relief of insolvent debtors, and for other purposes therein mentioned,' then we find for the Plaintiff, 4,404 42-100 dollars damages; is otherwise, we find for the Plaintiff 3,303 82-100 dollars damages.' To the special verdict, this memorandum was added: 'And it is agreed by the parties, that if in the opinion of the court, the Plaintiff could not legally give parol testimony to prove that the bill in the declaration mentioned, was in fact, drawn for other consideration than current money, the verdict shall be changed from the greater to the less sum found in the said verdict.'

The case was first argued in the Circuit Court, on a motion made by the Defendant to arrest the judgment, for the following reasons: '1st, Because the declaration aforesaid demands foreign money, without stating the value thereof in the current money of the United States of America, or of the Commonwealth of Virginia. 2nd, Because the said declaration does not charge that the bill of exchange therein mentioned was protested for non-acceptance; neither doth it charge, that the said bill was presented to the persons on whom it was drawn for acceptance, or that they ever were required to accept it. 3rd, Because the said action is founded on an act of Assembly, which was not in force, at the time when the bill of exchange mentioned in the declaration was drawn.' But these objections having been over-ruled, the law arising on the special verdict was argued, and ADJUDGED to be in favour of the Plaintiff; whereupon judgment was rendered for the sum of 4404 42-100 dollars, with interest at 5 per cent from the day of rendering the judgment, and costs.

From the judgment of the Circuit Court, the present writ of error was brought, a variety of exceptions were taken to the record, and after argument by Lee, Attorney General, for the Plaintiff in error, and by E. Tilghman, for the Defendant, the opinion of THE COURT was delivered by THE CHIEF JUSTICE, in the following terms.

Elsworth, Chief Justice.

In delivering the opinion of the court, I shall briefly consider the exceptions to the record, in the order in which they have been proposed at the bar.

I. The first exception states, that the act of the Legislature of Virginia, passed in the year, 1748, on which the action is...